Lawyer: Bush torture ‘enablers’ chargeable as conspirators
By David Edwards and Daniel Tencer

Published: August 11, 2009
Updated 8 hours ago

Senior members of the Bush administration could be charged with conspiracy to commit torture, even if Attorney General Eric Holder tries to limit the scope of an impending investigation, says an international-law and human-rights lawyer.

Scott Horton, who is also a contributing editor to Harper’s magazine, told MSNBC’s Keith Olbermann Monday night that “a rigorous special prosecutor” who “takes his job seriously” would also have to look at the conduct of the government officials who sanctioned torture.

A report in the Los Angeles Times this past weekend says that Holder, according to sources, “is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects.” But the article notes that the special prosecutor will be instructed to look at only cases of torture which went beyond the practices sanctioned by the administration.

Opponents of an investigation argue that it would set a bad precedent for a new administration to charge officials of the previous one with crimes, as it could lead to politically-motivated prosecutions.

But proponents of an investigation say Holder’s strategy doesn’t go far enough, and amounts to sanctioning torture. Some say it is worse than no prosecution at all, because it would mean courts would have to recognize the validity of some torture practices.

But on MSNBC’s Countdown Monday night, Horton told host Keith Olbermann that Holder may not be able to prevent a wider investigation of torture under a special prosecutor.

“As Congress enacted the anti-torture statute, it’s chargeable as a conspiracy,” Horton said. “So it’s not just the people in the room who would be the subject of the investigation, it would include the enablers, and that’s going to include a large number of senior people at the Department of Justice, as well as the National Security Council.”

Horton was evidently referring to US Criminal Code statue 2340A, which states, essentially, that people who conspired to enable torture can be charged with the same crimes as the people who actually carried out the torture.

Horton added that it “really would not be appropriate” to limit the special prosecutor’s investigation, because generally that’s not how special prosecutors operate.

“The regulations here say the attorney general will appoint a special prosecutor and will describe the essential facts of an underlying crime. The special prosecutor is supposed to investigate that crime, not specific people.”

Added Horton: “If we’re dealing with a situation where the appointment of a special prosecutor is appropriate, Eric Holder should get out of the way, the special prosecutor should study the crime and follow the factual trail wherever it goes.

“And all these efforts to put blinders on what the special prosecutor does are really unfortunate and inappropriate.”